Effect of alterations to indictment during trial

US v. Allmendinger:   Christian Allmendinger and a business partner formed a company, "A & O," in late 2004 in order to sell interests in life insurance policies. Over the course of the next few years, A & O added another partner, amassed approximately 800 investors, and earned millions of dollars. Unfortunately, the three men misappropriated client funds, used fraudulent marketing materials, and lied about the company’s size, staff, and earnings. In 2006, regulators from several states became concerned about A & O’s investment products, and the three men decided to sell the company, though only Allmendinger actually sold his interest and left A & O (the other two men had secretly agreed to buy A & O and continue running it under a new name). In early 2010, Allmendinger received word from federal investigators that he would be indicted along with his former partners for his part in A & O’s fraudulent investment scheme. Allmendinger did not cooperate with investigators and opted instead to go to trial where he was convicted on seven counts and received a 540-month sentence.

On appeal, Allmendinger claimed the district court violated his Fifth Amendment rights by altering the indictment, to omit allegations of conduct that occurred after Allmendinger sold his interest and left the company. Also, the district court re-drafted other language in the indictment to reflect the shorter duration of Allmendinger’s participation in the conspiracy alleged.

According to Fourth Circuit precedent, a fatal variance or constructive amendment, can occur when the government or the district court "broadens the bases for conviction beyond those charged in the indictment," and when "the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." Under the Fifth Amendment, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..."

A defendant’s Fifth Amendment rights are compromised if a variance creates surprise at trial, hinders the preparation of a defense, or exposes a defendant to the danger of double jeopardy. According to the Fourth Circuit here, though, the variance that occurred was not a fatal variance, but a mere, or non-fatal, variance, because the changes made to the indictment did not change the crime charged or broaden the bases for conviction. Here, the government proved a more narrow conspiracy, but that conspiracy had the same purpose and premises as the fraud alleged in the indictment. The Fourth Circuit held that this narrowing created, at most, a non-fatal variance, and Allmendinger’s constitutional rights were not abridged.